HomeMy WebLinkAboutTri-Party Agmt - 1212 S. Rangeline - 9-10-09TRI -PARTY AGREEMENT
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This Tri -Party Agreement (the "Agreement") Is executed the JD day of September, 2009,
by and among Community Bank (the "Lender "), (the "Borrower"), and The City of
Carmel Redevelopment Commission ( "CRC "). 1111 gel/Jai-10)E 2/_ofevalES, t-a-C-
1. Definitions.
Accrued Interest shall mean fhe -Base Rate Accrued Interest or the Adjusted Rate Accrued Interest; as
applicable.
Adjusted Outstanding Principal Balance shall mean the amount, on the Purchase Date, of the principal
balance of advances of proceeds of the Loan through the Purchase Date that: (a) have been made to pay
Permitted Costs; and (b) remain outstanding; which amount shall include all Lender Costs (including,
specifically, all Lender Casts that are owed by Borrower as a result of a Loan Default)._
Adjusted Purchase Price shall mean . the sum of: (a) the Adjusted Rate Accrued Interest; and (b) the
Adjusted Outstanding Principal Balance.
Adjusted Rate Accrued interest shall mean all interest on the Adjusted Outstanding Principal Balance that
has accrued, and remains unpaid, as of the Purchase Date, regardless of whether such lnteresthas accrued
atthe Base Rate, the Detaniit Rate, or the Judgment Rate, as applicable.
Base Outstanding Principal Balance shall mean the amount, on the Purchase Date, of the principal balance
of advances of proceeds of the Loan through the Purchase Date that; (a) have been made to pay Permitted
Costs; and (b) remain outstanding; w hich am aunt shall include all Lender Costs, to the extent that such Lender
Costs have been incurred in the absence of a Loan Default (excluding , specifically, all Lender Costs that are
owed by Borrower as a result of a Loan Default); provided that, in no event shall the Base Outstanding
Principal Balance exceed $3,000,000.00.
Base Purchase Price shall mean the sum oft (a) the Base. Rate. Accrued Interest; and (b) the Base
Outstanding Principal Balance.
Base Rate Accrued interest shall mean all interest on the Base Outstanding Principal Balance that has
accrued at the Base Rate, and remains unpaid, as of the Purchase Date.
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Base Rate shall mean an interest rate of % per annum.
Collateral shall mean: (a) the Real Estate; (b) the Project; (c) the. Rents;. (d) the Leases, and (e) the
Contracts:.
Contracts shall mean all contracts and agreements that relate to the design, construction, or operation of the
portion of the Real Estate and the Project that is subject lo the lien of the. Mortgage (including, without
limitation, all construction contracts; architectural contracts, and contracts forsupplies, material, and /or labor).
Cure Notice shall mean a written notice pursuant to which CRC notifies LenderthatCRC has elected to cute
a Loan Default by Borrower as permitted pursuant to Section 5.
Default Rate shall mean the 'Rafe of IR a()° " as defined in the Note.
Fee Title Interests shall mean (a) fee simple title to the Real Estate and the Project; and (b) full title to, and
vested ownership of, the Rents and the Lease; subject to the matters shown In the title corn mltment issued
byJf.\PUit 'if-n-6 as fin f(+n&trcrttr MC, with an Effective Date of S(?r r+u3flt-
Guaranties shall mean the Guaranty executed by ?Aux- 4-5 f612-\o aolffx8'r -in favor of Lender; and (b) the
Guaranty executed by odic in favor of Lender,
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Judgment Rate shall mean the interest rate on any money judgment entered against Borrower in favor of
Lender on. the Note.
Laws shall mean all applicable federal, state, or local laws, statutes, ordinances, rules, or regulations, or any
orders or decrees of any court. agency, or regulatory body.
Leases shall mean ail: (a) leases tenancies, occupancy rights, occupancy agreements, and agreements for
the sale, lease, or granting of other interests in any part of the Real Estate or the Project; and (b) guaranties
of the foregoing.
Lender Costs shall mean costs, . expenses, fees, and charges payable to Lender in accordance with the Loan
Documents..
Loan shall mean a loan from Lender to Borrower made to finance the payment of Permitted Costs in the
maximum principal amount of $3,000,000..
Loan. Default shall mean an "Event of Default" under any of the Loan Documents (including,
the failure. by Borrower to pay on the Maturity Date the full outstanding principal balance o
accrued interest an the Note; provided that, rEvent of Default" is not a defined term in any
then, with respect to such Loan Document, there shall be a Loan Default if Borrower is in de
beyond any applicable notice, grace, or cure periods.
Loan Default Notice shall . mean a written notice pursuant to which Lender notifies CRC that a Loan
exists,
Loan Documents shall mean the documents evidencing: and/or securing the Loan (including, without
limitation, the Note, the Mortgage, and the Guaranties),
Loan Interests shall mean: (a) the Loan; (b) the Loan Documents; (c) the first Gen of the Mortgage: on the
Real Estate and the Project; and (d) all rights and interests of Lender with respect to the Loan and under the
Loan Documents (including, specifically, the right to: (1) tameless the lien of the Mortgage; (11) enforce any
security interest or collateral assignment an or of the Collateral; (iii) otherwise enforce the terms and
conditions of the Loan Documents; (w) collect the full outstanding principal balance of the Note and all accrued
interest on the Note; and (v) exercise alt rights and remedies afforded by the Indiana Code to mortgagees�
and/or secured parties,
Loan Interests Closing snail mean the closing with respect, to the purchase by CRC of the Loan Interests.
Maturity Date shalt mean c1 /(f 0)2012 , the date on which the full outstanding principal balance of the
Not and all accrued interestbn the Note are scheduled to become due pursuant to the Note.
Mortgage shall. mean: (a) that certain Real Estate Mortgage executed by Borrower in favor of Lender; (b) that
certain Assignment of Lease and Rents executed by Borrower in favor of Lender; and (c) that certain Security
Agreement executed by Borrower in favor of Lender.
Note shall mean that certain promissory note in the principal amount of $3,000,000 executed by Borrower in
favor of Lender
Outside Closing Date shall mean, with respect to the Loan. Interests Closing, the date that is: (a) in the case
of the exercise by CRC of the Purchase Option, 30 days after delivery of the Purchase Exercise Notice; or
(b) In the case of the exercise by Lender of the Put O pooh 15 days after the expiration of the Standstill Period.
Outstanding Principal Balance shall mean the Base Outstanding Principal Balance or the Adjusted
Outstanding Principal Balance, as applicable.
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Permitted Costs shall mean: (a) the portion of the purchase price paid by Borrower at sheriffs sale to acquire
fee simple title to the Real Estate; and (b) the costs and expenses of Borrower obtaining and closing the Loan.
Permitted Release shall mean a release of all of the Real Estate, the Project, and the Collateral from the
liens, securtty Interests, and collateral assignments that are granted by. or made in, the Mortgage and the
other Loan Documents, in connection with payment accepted by Lender as payment In full of the outstanding
principal balance of the Note and all accrued interest on the Note.
Project shall mean the building and related improvements that are located on the Real Estate.
Purchase Date shall mean the date on. which CRC closes on the purchase of the Loan Interests from Lender:
Purchase Exercise Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC is
exercising the Purchase Option:
Purchase Option shall mean the option (but.. notthe obligation) of CRC to require Lender to assign the Loan
Interests for the Base Purchase Price.
Purchase Price shall mean the Base Purchase Price or the Adjusted Purchase Price, as applicable.
Put Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender is
exercising the Put Option.
Put Option shall mean the option (but not the obligation) of lender to require CRC to purchase the Loan
Interests for the Base Purchase Price..
Real Estate shall mean that certain real estate more particularly depicted and/or described on Exhibit A,
together with all fixtures attached thereto and real property interests appurtenant thereto.
Rents shall mean all rents, royalties, Income, proceeds, arid/or profits from the operation othee Real Estate
and the Project.
Standstill Period shall mean the period: (a) commencing upon delivery of a Loan Default Notice; and.
(b) ending on the last to occur of the date: 0) that is 30 days after delivery to CRC of a Loan Default Notice .
or a Maturity Default Notice; or (ii) of the expiration of the cure period provided to CRC pursuant to Section 5.
Notwithstanding the foregoing, If either: (a) CRC has exercised the Purchase Option; or (b) Lender has
exercised the Put Option; then the Standstill Period shall end on the date that is the first to occur of: (a) the
date on which the Loan Interests Closing occurs; or (b) the Outside Closing Date; provided that, if, due to a
failure of Lender, the Loan Interests Closing does not occur prior on or before the Outside Closing Date, then
the Standstill Period shall be extended until the Loan Interests Closing occurs.
2. Option to Purchase.
(a) General. If there is a Loan Default, then the Purchase Option and the Put Option
shall apply.
(b) Exercise.
(i) Lender shall deliver a Loan Default N otice to CRC con currently with
any notice provided to Borrower with respect to the Loan Default; provided
that, if Lender : :. (A) is not obligated to (or otherwise does not) provide any
such notice to Borrower; and (B) intends to exercise any of its rem edleswtth
respect to such Loan Default, then. Lender shall deliver a Loan Default
Notice to CRC prior to exercising any such remedies.
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(ii) At any time after CRC receives a Loan Default Notice, CRC may
exercise the Purchase Option by delivering an Purchase Exercise Notice to
Lender.
(iii) At any time after Lender delivers a Loan Default Notice to CRC,
Lender may exercise the Put Option by delivering a Put Exercise Notice to
Lender; provided that; prior to the last to occur of the date: (A) that is 15
days after delivery of the Loan Default Notice to CRC; or (B) of the
expiration of the cure period provided to CRC pursuant to Section 5; the
Loan Default is cured then the exercise by Lender of the Put Option shall .
be deemed to be rescinded and of no further force or effect.
(d) Limitations on Remedies. Notwithstanding anything to the contrary set forth in the
Loan Documents, except to avoid loss of, or damage to, the Collateral; Lender shall not
exercise any of its remedies with respect to a Loan Default (including that Lender shall not
apply the Default Rate or accept a deed in Lieu of foreclosure). until the expiration of the
Standstill Period; provided that: (A) the foregoing shall not prohibit Lender from delivering a
Put Exercise Notice to CRC pursuant to Subsection 2(c) (d); and (B) if, prior to the expiration
of the standstill Period, either, (A) CRC delivers a Purchase Exercise Notice to Lender, or
(8) Lender delivers a Put Exercise Notice to CRC; then Lender shall not exercise any of its
remedies with respect to such Loan Default (including that Lender shall not apply the Default
Rate or accept a deed in lieu of foreclosure) unless, due to a failure. of CRC, the Loan
Interests Closing has not occurred as of the Outside. Closing Date;
(e) Adjusted Purchase Price. Notwithstanding anything to the contrary set forth herein,
If: (i) there Is a Loan Default; (0) Lender has complied fully with the terms and conditions of
Section 2 (including that Lender refrains from exercising any of its remedies with respect to.
the Loan Default, except as permitted in Subsection 2(d)); (Ai) after the expiration at the
Standstill Period, Lender property exercises remedies that are available to it with respect to
the Loan Default; (iv) Lender has not exercised the Put Option; and (v) subsequent to the
proper exercise by Lender of its available remedies, CRC exercises Me Purchase Option;
then the applicable Purchase Price shall be the Adjusted Purchase Price.
Closing.
(a) CRC Exercise. If CRC exercises the Purchase Option, then the Loan interests
Closing shall occur on or before the date that is 30 days after CRC delivers the Purchase
Exercise Notice.
(b) Lender Exercise. If Lender exercises the Put Option, thenthe Loan Interests Closing
shall occur on or before the date that is 16 days after the expiration of the Standstill Period;.
(c). Loan Interests Closing. At the Loan Interests Closing: (1) CRC. shall pay the
Purchase Price; and (li) Lender shall assign the Loan Interests to CRC pursuant to
assignment documents that: (A) are adequate to vest the Loan Interests in CRC free and
clear of the rights or interests of any other party; (B) contain certifications by Lender to the
effect that Lender. (1) Is not in default under this Agreement (Including, without limitation, that
Lender is in com pliance with the terms and conditions of Section 4); and (2) is not aware of
any valid defenses or offsets of Borrower to: (a) enforcement by CRC, as assignee of
Lender, of the Loan Documents; (6) collection by GRC, as assignee of Lender, of any
amounts due from Borrower under Me Loan Documents; and /or (y) exercise by CRG, as
assignee of Lender, of the rights and remedies afforded by the Indiana. Code to mortgagees
and /or secured parties (including, without limitation, the right and remedy of foreclosing or
enforcing the Mortgage or any lien, security interest, or collateral assignment on or of the
Collateral); and (C) otherwise reasonably are acceptable to CRC.
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(d) Closing Failure. Notwithstanding anything to the contrary set forth herein, if: (i) the
applicable Purchase. Price is the Base Purchase Price; and (ii) due to a failure of CRC, the
Loan Interests Closing does not occur on or before the Outside Closing Date; then the
applicable Purchase Price automatically shall become the Adjusted Purchase Price.
4. Prohibitions, In each case, except with the prior written consent of CRC:
(a) Lender shall not accelerate the maturity date of the Loan or the payment of all cr any
portion of the Outstanding Principal Balance, unless and until Lender has complied with the
terms and conditions of Section 5 and either; (1) CRC does not elect to cure the applicable
default by Borrower within the time permitted pursuant to Section 5; or (11) CRC: (A) timely
elects to cure such default by Borrower, but (B) does not complete the foregoing within the
time permitted pursuant to Section 5;
(b) Lender shall not apply any proceeds of insurance policies or condemnation awards
payments, damages, or proceeds other than either to: (i) reduce the Outstanding Principal
Balance; or (ii) repair andforrestore the Project; as provided in Section24. of the Mortgage;
(c) Lender shall not modify, amend, or revise Section 210 of the Mortgage, if the effect
of the modification, amendment, or revision is to cause the application of proceeds of
insurance policies or condemnation awards, payments, damages; or proceeds, other than
as provided in such Sections as in effect on the date hereof;
(d) Lender shall not modify, amend, or revise any of the, Loan Documents to increase
the default rate of interest to an amount that exceeds the Base Rate plus _ °%
(e) Lender shall not condition acceptance of a prepayment of all or any portion of the
Outstanding Principal Balance upon receipt of a prepayment premium or penalty;
(f) Lender shall . not advance Loan proceeds for any purpose other than payment of the
Permitted Costs; provided that the foregoing shall not prohibit Lender from advancing Loan
proceeds to pay Lender Costs in compliance with the terms and conditions of the Loan
Documents and this Agreement;
(g) Lender shall not advance more than $3,000,000,00 of Loan proceeds: (1) except as
provided in the Loan Documents; and (ii) notwithstanding the terms and conditions of the
Loan Documents, until: (A) there is a default. by Borrower; and (B) Lender has complied with
the terms and conditions of Section 5 and either. (t) CRC does not elect to cure the default
by Borrower within the time permitted pursuant to Section 5; or (2) CRC; (d) timely elects to
cure such default by Borrower; but (6) does not complete a cure within the time permitted
pursuant to Section 5; provided that, notwithstanding the foregoing, if CRC has exercised the
Purchase Option or Lender has exercised the Put Option, then: (A) Lender shall not advance
more than $3,000,000.00 of Loan proceeds unless the Loan interests Closing does not occur
on or before the Outside Closing Date; and (B) if the Loan Interests Closing does: not occur
on or before the Outside Closing Date due to a failure of Lender, Lender shall not advance
more than $3,000,000.00 of Loan proceeds;
(h) Lender shall not advance Loan proceeds for any purpose otherthan to pay Permitted.
Costs: (1) except as provided In the Loan Documents; and (ii) notwithstanding the terms and
conditions of the Loan Documents, until: (A) there Is a default by Borrower, and (B) Lender
has complied with the terms and conditions of Section 5 and either: (1) CRC does not elect
to cure the default by Borrower within the time permitted pursuant to Section 5; or (2) CRC:
(o) timely elects to cure such default by Borrower, but(8) does not complete a cure within the
time permitted pursuant to Section 5; provided that, notwithstanding the foregoing, if CRC
has exercised the Purchase Option or Lender has exercised the Put Option, then: (A) Lender
shall not advance Loan proceeds for any purpose other than to pay Permitted Costs unless
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the Loan interests Closing does not occur on or before the Outside Closing Date; and (B) if
the Loan interests Closing does not occur on or before the Outside Closing Date due to a
failure of Lender, Lender shall not advance Loan proceeds for any purpose other than to pay
Permitted Costs;
(i) Lendershall notwaive, release, delete, orcom promise the lim Ratio ns and restrictions
under Section ) to of the Mortgage or consent to Borrower, directly or indirectly: (i) selling,
transferring, assigning, conveying, mortgaging, pledging, or otherwise disposing of the Real
Estate, the Project, or the Collateral; or (11) creating or permitting to occur any changes, direct
or indirect, in the ownership or control of Borrower; h any case: (i) except as provided in the
Loan Documents; and (ii) notwithstanding the terms and conditions of the Loan Documents,
until:. (A) there is a default by Borrower, and (13) Lender has complied with the terms and
conditions of Section 5 and either. (1) CRC does not elect to cure the default by Borrower
within the time permitted pursuant to Section 5; or (2) CRC: (a) timely elects to cure such
default by Borrower; but (8) does not complete a cure within the time permitted pursuant to
Section 5; provided that, notwithstanding the foregoing, if CRC has exercised the Purchase
Option or Lender has exercised the Put Option, then: (A) Lender shall not waive, release,
delete, or compromise the limitations and restrictions under Section 1 b of the Mortgage
or consent to Borrower, directly or indirectly: (1) selling, transferring, assigning, conveying,
mortgaging., pledging, or otherwise disposing of the Real Estate orthe Project or (2) creating
or permitting to occur any changes, director indirect; in the ownership or control of Borrower;
unless. the Loan Interests Closing does not occur on or before the Outside Closing Date; and
(B) if the Loan Interests. Closing does not occur on or before. the Outside Closing Date due
to a failure of Lender, Lender shall notwaive, release, delete, or compromise the limitations
end restrictions under Section 1(t of the Mortgage or consent to Borrower, directly or
indirectly: (1) selling, transferring assigning, conveying, mortgaging, pledging, or otherwise
disposing of the Real Estate or the Project; or (2) creating or permitting to occur any
changes, direct or indirect, in the ownership or control of Borrower,
(j) Lender shall not. (I) waive, release, delete, or compromise the terms or condittons
of Section. /t!> or 11 of the Mortgage; or (ii) waive or release an Event of Default under
Section.. /IP or i7 onto Mortgage;
(k) Lender shall not, waive, release, delete, or compromise the Obligations of Borrower
to pay the Accrued Interest or the Outstanding Principal Balance, except: (1) in compliance
with the terms and conditions of this Agreement; or (11) If the Purchase Price Is reduced
commensurately;
(I) Lender shall not consent to Borrower directly or indirectly selling, transferring,
assigning, conveying, mortgaging, pledging, or otherwise delegating or disposing of its
interests in or to, Its rights to or under, or its obligations under or for, the Loan or the Loan
Documents;
(m) Lender shall not release the Collateral: (1) as collateral for the Loan; or C) from any
Hen, security interest, cr collateral assignment That is granted by, or made in, the Mortgage
or the other Loan Documents; in either case except in the event of a Permitted Release{
(n) Lender shall not subordinate or compromise: (I) any lien, security interest, or
collateral assignment on, in, or of the Collateral that is granted by, or made in, the Mortgage
or the other Loan Docum eats; or (ii) the priority thereof;
(o) Lender shall not consent to any second or subordinate Tien, security interest, or
collateral assignment on, in, or of the Real Estate or the Project, except: (1) for the lien of
current real estate taxes, assessments, and governmental charges; (ii) for mechanic's liens:
being discharged pursuant to the terms and condition's of Section 8 of the Mortgage; or (lit) if
there is a default by Borrower with respect to which Lender has complied with the terms and
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conditions of Section 5, and either. {A) CRC does not elect to cure the default by Borrower
within the time permitted pursuant to Section 5; or (B) CRC: (1) timely elects to cure such
default by Borrower; but (2) does not complete a cure within the time perm teed pursuant to
Section 5; provided that, notwithstanding the foregoing, If CRC has exercised the Purchase
Option or Lender has exercised the Put Option, then: (A) Lender shall not consent to any
second or subordinate Ron, security interest, or collateral assignment or In, or of the Real
Estate or the Project unless the Loan Interests Closing does not occur on or before the
Outside Closing Date; and (5) if the Loan Interests Closing does not occur on or before the
Outside Closing Date due to a failure of Lender, Lender shall not consent to any second or
subordinate lien, security Interest, or collateral assignment on, in, or of the Real Estate or the
Project;
(p) Lender shalt not modify, amend, or revise any of the Loan Documents (or waive,
release, delete, or compromise the rights and remedies of Lender thereunder) so that, If the
Loan Interests were assigned to CRC, the Loan. Documents would not provide to CRC, as
assignee: (i) the right to collect the Accrued Interest and the Outstanding Principal Balance;
(ii) an enfordeable mortgage lien . on the Real Estate and the Collateral; (iii) an enforceable
security interest and collateral assignment in and of the Rents, Leases, Contracts, and
Equipment; pil)the Optic call on, and enforce, the Guaranties; and (iv) the right and remedy
otforeclosing orenforcing the Mortgage or anylien, security interest, orcollateral assignment
on, in, or of the Collateral; and
(q) Lender shall not directly or Indirectly sell, transfer, assign, convey pledge, or
otherwise delegate or dispose of its interests Sn or to, or its rights to or under, any of the Loan
Interests, except subject to the termsan d co nditions of this Agreement and the rights of CRC
hereunder,-
CRC Cure Right,
(a) Notices. Lender shall provide. to CRC copies of all notices of defaults, delivered to
Borrower pursuant to the Loan Documents, which copies shall be delivered simultaneously
with the notice delivered, to Borrower; provided that, if no notice of default is required to be
delivered to Borrower prior to a default becoming a Loan Default, then,, priorto exercising any
of its remedies under the Loan Documents with respect to any default (including, without
limitation, Imposing a default rate of interest), Lender shall deliver written notice to CRC.
(b) Default. If such notice is for a default that is curable by GRC,. then CRC shall have
the option (but not the obligation) to cure sudh default; provided that, to exercise such option,
CRC shall deliver a Cure Notice to Lender on or before the date that. is 30 days after CRC.
receives notice from Lender of the existence of such default. If CRC timely electsto cure the
default, then CRC shall effectuate the cure within; (1) ten days after delivery of the Cure
Notice, in the event of a monetary default; or (ii) 30 days after delivery of the Cure Notice, in
the case of a default other than a monetary default; provided that, if such default is of a
nature that it reasonably cannot be cured within 30 days, then, so long as CRC commences
the cure within the 30 day period , the period for completing the cure shall be extended for as
long as CRC diligently is pursuing such completion, which extension shall not exceed a
period of 90 days.
(c) Standstill. Notwithstanding anything to the contrary setforth in the Loan Documents,
Lender shall not exercise any of its remedies under the Loan Docum eats with respect to any
default (including, without limitation, that Lender shall not apply the Default Rate or accept
a deed in lieu of foreclosure) until the expiration of the Standstill Period. If CRC cures a
default by Borrower pursuantto this Section, then: (I) Lendershall accept such action by CRC
as a cure by Borrower (11) Lender shalt not exercise any of its remedies under the Loan
Documents with respect to the default, as cured by CRC; and (iii) Borrower, immediately
upon receipt of written demand, shall reimburse CRC for all costs and expenses incurred by
CRC in connection with effectuating such curr�ef.__
02009 Wallach Somers $Haas, PC. Use without permission prohibited CAUHerslxarlWoaummbCH Tsi Party Asreemeotwpd
6. Assignment. No party shall assign this Agreement, or its rights or obligations hereunder, without the
prior written consent of each of the other parties; provided that: (a) without the prior written consent of
Borrower or Lender, CRC may assign this Agreement to another agency or instrumentality of the City of
Carmel, Indiana, of equal or superior creditworthiness and financial capacity to perform the obligations of CRC
hereunder, and (b) without the prior written consent of Borrower or CRC, Lender may assign this Agreement
to any subsidiary or affiliate of Lender. Notwithstanding any assignment permitted underthis Section: (a) each
party shall remain liable to perform all of the teens and conditions to be performed by it underthis Agreement;
and (b) the consent of the other parties with respect to an assignment shall not release the assigning party
from such performance,
7. Deliveries. Each party shall execute and deiver such additional documents and instruments as
reasonably may be reasonably required by the other parties to accomplish the purposes of this Agreement.
8. Indemnity. Each of Lender, Borrower, and CRC shall indemnify and hold harmless the other parties
from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys'
fees) arising from; or in connection with the breach by Lender, Borrower, or CRC, respectively, of any term
or condition of this Agreement:
9. Authority. Each undersigned person executing this Agreement on behalf of Lender, Borrower, and
CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary
action of Lender, Borrower, and CRC, respectively, to execute and deliver this Agreement; (b) he or she has
full capacity, power, and authority to enter into and carry out this Agreement; and (c) the execution, delivery,
and performance of this Agreement have been authorized by Lender, Borrower, and CRC, respectively.
i0. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in
writing, and shall be deemed to have been given when: (a) delivered in person to the other party, (b) sent by
facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, With
confirmation of receipt, addressed as follows: to Lender at &Si west frCt o leorf2, Abe tiSvtet4_ Vonn(oO
; to Borrowerat gel° Sim2•14-61 RCM, `2'ioaSL'r rtrr7 449077
; and to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032,
Facsimile: 317 -844 -3498, Attn. Las Olds, with a copy to: Karl P. Haas, Esq.. INaliack Somers & Haas, PC
One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile; 317 -231 -9900, Any party may
change its address for notice from time to time by delivering notice to the other parties as provided above,
11. Force Majeure. Notwithstanding anything to the contrary set forth herein, if any party is delayed in,
or prevented from, observing or performing any of its obligations under, or satisfying any term or condition of,
this Agreement as a result of; (a) an actor omission of any other party; or (b) any other cause that is not within
the reasonable control of such party (including, without limitation, unusually inclement weather, the unusual
unavailability of materials, equipment, services or tabor, and utility or energy shortages or acts or omissions
of public utility providers, but excluding a lack of financial resources); then: (a) such observation, performance,
or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction S
delayed or prevented; and (b) the deadlines for observation, performance, and satisfaction, as applicable,
shall be extended for the same period
12. Miscellaneous, Subject to the terms and conditions of Section 6, this Agreement shall inure to the
benefit of, and be binding upon, each of Lender, Borrower, and CRC, and their respective successors and.
assigns. This Agreement constitutes the entire agreement among the parties with respect to the subject
matter hereof, and may be modified only by a written agreement signed by each of the parties. The invalidity,
illegality, or unenforoaabillty of anyone or more of the terms and conditions of this Agreement shall not affect
the validity, legality, or enforceability of the remaining terms and conditions hereof. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Indiana. This Agreement may be
executed in counterparts, each of which shall be an original, but all of which, when taken together, shall
constitute a single instrument. All Exhibits referenced in this Agreement are attached hereto and incorporated
herein by reference.
C 2009 WallackSomets &Baas, PC. Use wIIboutpermission prohibited. CAI.40Kar3\DocumentsWCB Tee Party Agia®ent,wpd
IN W ITNESS WHEREOF, Lender, Borrower, and CRC have executed this Agreement as of
the date set forth above.
COMMUNINK
By..
Printed: (7 4`'? -d'-�
Title: ASSicrittir Iti-c YLrc5)0E^'r
YIiecZ .ci1£S L-
By:
Printed: 14AL J nW ��
Title: t1rtd'rt k
TH ^CiT. +., CARMEL REDEVELOPMENT
QO
B
Ronald E. Carter, President
02009 Wallack Somers & Ban PC. Use without pnmission prohibited. CA Cad'DocumeatstCB Tri Party Agmomeatwpd